Here’s the latest.

SCOTUS Denial of TCL v. Ericsson Petition Means Juries Decide Damages for SEP Infringement

Reported by Gene Quinn at IPWatchdog

By denying certiorari in TCL Communication Technology Ltd. v. Telefonaktiebolaget LM Ericsson, the Supreme Court allows the Federal Circuit’s decision to stand. In this case, TCL questioned whether a release payment term in its licensing agreement with Ericsson qualified as compensation for “past patent infringement by TCL” or restitution for “TCL’s past unlicensed sales.” The Federal Circuit held that the remedy sought by Ericsson was legal in nature and thus requires a jury trial under the Seventh Amendment. The district court had initially ruled that a jury trial was not required, so the case now returns for further proceedings at the lower court. Gene Quinn summarized the ramifications of the Supreme Court passing on hearing the case:

As important as the Federal Circuit decision may be in recognizing the role of juries to determine damages in SEP litigation, it is true that many had hoped that this closely watched case would produce a resolution with respect to what actually constitutes a FRAND (fair, reasonable and non-discriminatory) offer of a licensing royalty rate relative to SEPs. 

For more information, see our coverage.

Full Federal Circuit Grapples With Right to Review VA Manual

Reported by Perry Cooper at Bloomberg Law

All judges (barring one recusal) of the Federal Circuit participated in the court’s first telephonic en banc oral argument in National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs. Perry Cooper recaps the oral arguments where the Federal Circuit is considering its ability to hear pre-enforcement challenges to interpretive rules within the VA’s administrative staff manual.

Judge Jimmie V. Reyna worried about how many cases could arise from the hundreds of changes the VA makes to its manual every year. “If we were to grant [NOVA’s] claim, aren’t we looking at a flood on this court’s docket of pre-enforcement challenges?” he asked Martinez. “Wouldn’t that undermine the agency’s determinations, and more importantly, wouldn’t it also hurt the veterans in the long run?”

However, other judges on the court worried about the possible immunity from judicial review if the Federal Circuit did not have jurisdiction in these cases.

“I’m concerned that your position that the manual provisions aren’t reviewable would allow the agency to hide provisions that should have gone through notice and comment or otherwise been published,” [Judge Todd M. Hughes] said.

For more information, see our coverage.